DIGITAL RIGHTS MANAGEMENT IN SOUTH AFRICA – BUYER BEWARE

Posted on: November 6th, 2017 by Yaaseen Sheik

The Copyright Amendment Bill seeks to introduce the concept of “Digital Rights Management” into South African Law for the protection of digital media. What does “Digital Rights Management” entail and how will it affect the consumer?

WHAT DOES DRM LOOK LIKE?

Have you ever found yourself in a situation where you have purchased some new software or other form of electronic media such as music or an e-book, but as soon as you attempted to use it, you were met with a warning notification? Maybe the software required a constant internet connection in order to run? Did it require that you sign in to a special software client in order for it to run? Perhaps the e-book you had purchased could only be read on a particular device? Maybe whilst attempting to watch a video on YouTube, you were met with the message that the video is not available to view in your country? Such occurrences are the result of the implementation of DRM.

WHAT IS DRM AND HOW DOES IT WORK?

The implementation and use of Digital Rights Management, or “DRM” as it is more commonly known, originates from Article 11 of the World Intellectual Property Organization (WIPO) Copyright Treaty, which allows countries that have signed the Treaty to develop and implement technological safeguards for copyrighted electronic media. DRM, therefore, is a combination of legal and technical protection put in place by a developer or a publisher of electronic media in order to restrict or prevent the unauthorised copying and use thereof.

Due to the nature of DRM as a technological safeguard and the many different forms and types of electronic media, DRM can take multiple forms. In essence, while the method of implementation and the use of DRM may differ from product to product, the end goal is still the same, the protection of copyright.

USE AND POTENTIAL PITFALLS

Originally, the function of DRM was much simpler in that it only regulated the use of the copyrighted digital media. While DRM is intended to serve the legitimate purpose of protecting the rights of the copyright holder, there is no denying that newer implementations of DRM technology have become increasingly problematic and arguably, more draconian. Newer implementations seek not only to regulate the use of the protected electronic media, but seek to control access thereto. An example of how DRM can be used to control access occurred in 2009, when consumers who purchased copies of a popular George Orwell novel, 1984, from Amazon, found that their purchased copies had disappeared from their kindle e-readers and they had been refunded. It was later indicated that the company that had listed the digital copy of the novel did not have any rights to the novel. In order to limit their implication, Amazon remotely deleted all copies of the book.

DRM is also problematic in the sense that, if not properly controlled, it would interfere with another right that the Copyright Amendment Bill seeks to introduce into South African law, the right of fair use. The right of fair use attempts to reconcile the rights of copyright holders and the rights of users. Essentially, fair use directs that there can be no breach of copyright where the product is used for a specific recognised purpose (including but not limited to comment, criticism, educational purposes and parody), where it does not conflict with the normal rights of the copyright holder, or where it does not prejudice the legitimate interests of the copyright holder.

Given that newer implementations of DRM attempt to exert some form of control or restriction on access and use of electronic media, it is not outside the realm of possibility that DRM, especially more draconian implementations, could be at odds with these rights.

South Africa would have to balance the rights of developers and publishers in their copyrighted works against the right of use enjoyed by the consumer in order to ensure that there is no significant overlap or bias in the exercise of rights. In short, while protection of intellectual property is most certainly warranted, the rights of a developer or publisher in their copyrighted work should not be so unrestricted as to retain or allow substantial control of access and use over their work.

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